The Constitution
U.S. Chapter 2
The Paradoxical US
Constitution
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The constitution …
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Is the most respected political document in the US
and the most misunderstood
Attempts to create a powerful, yet limited
government
Rested on popular support, but limited popular
participation
Revered human rights, but allowed for slavery,
second class status for women
Was based on political idealism but also
pragmatic compromises
The Nature of Constitutions
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Every group has rules of operation
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Long history of constitutions in West
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Ancient Greece, Magna Carta
After fall of Roman Empire, Middle Ages
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From clubs to countries
Divine Right, backed by theology and military might
The Enlightenment was an intellectual, political
and scientific movement focusing on humanism
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Challenged idea of Divine Rights, England – John
Locke
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Argued government was about serving people
Against idea that people served divinely appointed ruler
English/Colonists’ Experiences
with Constitutions
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Magna Carta in 1215 first limit on power of English
Monarch
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English Bill of Rights in 1689 required that English
Monarch could not act without approval of
parliament
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Slow development of “unwritten constitution” in England
English Glorious Revolution in 1689, theorist John Locke
English Monarch today is symbolic, Parliament has power
Many similar rights in US Bill of Rights
English settlers who came to America wrote
constitutions for their colonies and then again for
states when gained independence from England
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Starting with Mayflower compact in 1620
The Revolutionary
Roots of the Constitution
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Colonists in America in the late
1700’s enjoyed a degree of
freedom few other people had at
that time
The Continental Congress asked a
committee to write a statement of
independence
The resulting Declaration of
Independence followed John
Locke’s idea of government based
on consent of the people
From Revolution to the
Articles of Confederation
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The Articles of
Confederation created a
confederal system: power
is centered in the regional
governments
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Each state had supreme
power within its borders
The national government was
weak
Under the Articles of Confederation:
1781-1789
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Created a weak central government
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One house legislature and no independent
executive or judiciary
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The central government had no power to force states
to follow its laws
States could not be required to collect taxes for the
national government
Each state of the 13 states had one vote in the
legislature, passing a bill required 9 votes
To amend the Articles of Confederation required a
unanimous vote of all states
Under the Articles of Confederation:
1781-1789
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The Articles of Confederation allowed the
national government to
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But states could and also did do these things
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Create a national army and print money
Created state militias and printed their own money
States did not always recognize other states
contracts
The main point is that the Articles of
Confederation was a Confederal system
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The main power was at the state level, not the
national level
Under the Articles of Confederation:
1781-1789
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Why was the US set up this way?
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People thought of themselves as residents of
states first
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Colonies, in some cases, had existed for more than
100 years, the US had just been created
States were competing with each other over westward
expansion and did not want to be limited by national
government
People had rebelled against a strong central
government (England) and did not want to
recreate that
Under the Articles of
Confederation: 1781-1789
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The Articles of Confederation failed because:
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The national government had no power to tax
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There was no independent leader to direct the
national government
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The national government could not regulate
interstate and foreign commerce
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It could not be amended without the unanimous
consent of all the states
It was unable to react quickly to emergencies
(Shay’s Rebellion)
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The Constitutional Convention
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A convention was called to revise
the Articles in Philadelphia in 1787
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Immediate cause was concern about
the national government’s inability to
respond to Shay’s rebellion
All states except Rhode Island sent
delegates
The Constitutional Convention
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The people who attended the convention were
people involved in the revolutionary war and
national gov’t
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George Washington – most popular person in US
Alexander Hamilton – advocate for strong central
gov’t
James Madison – had many ideas, kept important
journal
Generally upper and middle class
Some have argued convention was for benefit of
wealthy, but some wealthy opposed constitution,
and some wealthy favored constitution
Key motivation for involvement seems to be
support for stronger national government,
concern US was too weak to survive
The Constitutional Convention
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Some historians have argued founders were just
trying to protect their economic self-interest
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The constitution does protect property and the rule of
law
But, the constitution allowed for social mobility and
opposed titles of nobility
In general the founders were middle to upper class
Today some people make claims about the
religious nature of the founders
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When you examine the religious background of the
founders there is a diversity of religious backgrounds
and some people with no formal religious ties
Based on what was written in the constitution they
created a sharp separation between religion and holding
political office
Ratification of the Constitution
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From summer 1787 until they finished September
17, 1787, the convention worked on writing a new
Constitution
Under the rules of the Articles of Confederation all
13 states had to ratify a change for it to go into
effect
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This was going to be difficult
They ignored the rule and pretended they were starting
from scratch and created a new rule that said this new
Constitution would go into effect when 9 of the 13 states
ratified the new Constitution
How did they get away with this?
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Enough people were unhappy with the Articles of
Confederation government
Large states (New York and Virginia) eventually ratified
the new Constitution
Ratification of the Constitution
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As part of the debate over ratification of
the Constitution an important set of
arguments in favor of ratification were put
forward in the Federalist Papers
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They were written by Hamilton, Madison and Jay
85 brief essays written to convince the state of New
York to vote in favor of the Constitution
Most famous essays:
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Essay 10: problem of political parties and interest groups
Essay 51: importance of a system of checks and balances
The Federalist Papers are
important because
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Provide insight into thinking behind
Constitution
Sometimes used by Supreme Court
Ratification of the Constitution
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Federalists (pro) and Anti-federalists (con)
debated the merits of the new Constitution,
as evidenced by the writings contained in the
Federalist Papers
A promise add a Bill of Rights emerged as a
concession to gain the required states for
ratification (especially New York)
•The Bill of Rights restrains the national
government by listing specific rights and
liberties which citizens cannot be denied
•The Bill of Rights emphasizes the limited
character of the national government’s
power
Structure of the Constitution
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One major change from the Articles of
Confederation is that the Constitution
begins “We the People”
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The Articles of Confederation began by
describing a “perpetual union between the
states”
By appealing to “the People” the founders
hoped to gain support for the new
Constitution
Structure of the Constitution
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Seven major articles
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First three articles cover the three branches
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Entire document is quite short
Article I Congress – detailed, main power of gov’t here
Article II President – detail about election, rest short
Article III Judiciary – short, just creates the Supreme
Court, leaves rest up to Congress
Article IV covers relations between states
Remaining articles short
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Article V – amendment process, makes change difficult
Article VI – supremacy clause and requires gov’t to
honor debts, no religious test for office
Article VII – 9 out of 13 rule for ratification
Article V Amendment Process
Proposal
process 2
never used
Ratification
process 2 only
used once
Dilemmas of the Constitution
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How to create a stronger national government
to address problems of Articles of
Confederation, without becoming tyrannical?
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How to create a national government which
would inevitably reduce the power of the
states and still get it approved by the states?
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Should the states be treated equally or not?
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How could the founders get popular support
for the constitution even though the founders
did not trust the average person?
Representation: The Great Compromise
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Two approaches to Representation in the
Congress
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Virginia plan: Two Chambers, states
represented by population in each chamber, so
larger states would have more power
New Jersey plan: One Chamber, less change
from Articles of Confederation, each state (large
or small) would have equal representation
The Great Compromise
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Two Chambers (bicameral),
House of Representatives states represented
by population
Senate each states has the same
representation (2 Senators)
Limiting Power: Separation of Power
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Separation of Powers is the idea that each
branch of government has specific
responsibilities separate from the other
branches
No person serves in two branches
Followed in many state constitutions
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Legislative Branch (Congress): Writes laws
Executive Branch (President): Carries out laws
Judicial Branch (Courts): Interprets laws
Each branch also has other responsibilities
A Separation of Powers system is different
from a Parliamentary system where the
executive is chosen from the legislature
Limiting Power: Checks and Balances
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Checks and Balances is the idea that each
of branch of government can limit the other
two branches in some way
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Founders gave Congress many ways to check the
President (power of the purse, watchdog function,
impeachment, power to declare war) because
most concerned about tyrannical executive
The Supreme Court’s power to declare laws
unconstitutional is not directly written in the
constitution, was claimed by Supreme Court in
1803 case Marbury v. Madison
President can veto laws, appoint judges to Court,
pardon those convicted of federal crimes
See chart (many different types of checks)
Slavery
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Founders allowed slavery
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Many in north agonized over slavery, but few did anything –
they expected slavery to “wither away”
Those from the south who depended on slave labor would
not join the constitution if it outlawed slavery or diminished
their power
Stain on constitution, led to decades of human misery and
bloody Civil War
Compromise over slavery in Constitution
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Slaves counted as 3/5’s of a person for a state’s
representation in the House of Representatives, but
slaves not allowed to vote
Northern states supposed to return Fugitive slaves
The slave trade: said Congress could not end slave trade
until 1808 (Congress did end slave trade 1808)
Electing the President and Vice
President
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Founders rejected the idea of popular election: did
not trust average voters; founders were afraid of “mob
rule”
Created the electoral college: a body of electors from
states, chose President and Vice President by majority
vote
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To start with most states had their legislature choose the
electors, today all states have electors chosen by the people
Originally, electors did not cast separate ballots for President
and Vice President, but since 1804 they have
This change was necessary to take account of parties
If no majority in the electoral college:
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President chosen by House from among the top three vote
getters (with each state having one vote)
Vice President chosen by Senate from among the top two
vote getters (with each senator voting individually
Federalism: National or State Power?
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The founders wanted to set up a system that
would give more power to national government,
but which would be approved by the states
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A unitary system would have been opposed by the
states
The confederal system before was too weak
Developed the federal system: some power for states
and some for national government
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The specific or enumerated powers of the national gov’t
are listed in the section on Congress (Article I, section 8)
In addition the end of Article I, section 8 states that the
national government has implied powers, which stretch
the national gov’t power through the “necessary and
proper” clause (sometimes called the “elastic clause”)
States have powers such as: choosing the President,
ratifying amendments, 10th Amendment (not that effective)
Elections: Defer to the States
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Rather than defining who could or could not
vote, the founders left it up to the states to
decide who was allowed to vote at the
national level
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Again, because the founders distrusted average
citizens they set up a system that would continue
the elite system in place at the state level
Most states required a person to have a certain
amount of property to be allowed to vote
The constitution required that anyone who could
vote for the state’s lower house be allowed to vote
for national elections
But the constitution also allowed the Congress to
change the rules for who was allowed to vote
Popular Rule
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The founders wanted popular support for a
system that limited popular rule
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Founders gave states the power to determine who
could vote
Which offices could people vote directly for?
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Originally, only the House of Representatives
In 1913 the 17th amendment was passed to allow people
to vote directly for their Senators
Senators are also elected for 6-year terms with 1/3
elected every two years, so takes 4 years to elect
majority
President chosen by electoral college
Federal judges nominated by President, confirmed by
Senate serve lifetime appointments
In general the system devised by founders does not
respond quickly to popular opinion
removed 1913
Interpreting the Constitution
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Interpreting the Constitution is not a simple
exercise:
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Because the founders tried to resolve many
contradictory desires
Because people have different interpretations about
what the founders intended
Because people have different interests
Because issues have developed which the founders
could not have imagined
Different philosophies have developed for
interpreting the constitution:
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Living Constitution v. Original Intent
Strict Construction v. Loose Construction
Judicial Activism v. Judicial Restraint
Interpreting the Constitution
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Living Constitution and Loose
Construction are usually associated with
liberals
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The idea that we have a living constitution
is the idea that the constitution was written in
a different time and each generation
interprets it for their time
To be able to interpret the constitution in this
way requires loose construction of the
words so they can be appropriate for today’s
world
Liberals would support this view because it
generally allows for more government action
in the economic area and less government
action in the private area
Interpreting the Constitution
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Original Intent and Strict Construction are
usually associated with conservatives
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Conservatives tend to support traditional
values and therefore try to interpret the
constitution based on determining the
original intent of the founders
To do this they use a strict construction of
the words used in the constitution
In general this leads to less government
involvement in the economic area and more
support for traditional values in the private
area
Interpreting the Constitution
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Judicial Activism v. Judicial Restraint
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During the 1950’s and 1960’s there were a number of
famous liberal Supreme Court decisions (such as Brown
v. Board of Education (1954) ending segregation in
schools, Miranda, etc…)
Conservatives opposed these decisions on the grounds
that these judges were judicial activists, that the judges
were substituting their liberal beliefs for a correct reading
of the Constitution and taking the over the job of making
policy from legislatures
Conservatives called for these judges to practice judicial
restraint and not change the laws passed by the
legislature
Because of this some conservatives have developed a
belief that judicial activism is always liberal
But this is not the case, for example when conservatives
brought a lawsuit to declare Obamacare unconstitutional,
they were calling for conservative judicial activism
Interpreting the Constitution
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Who should interpret the Constitution?
Until 1804 the President claimed, in his
veto message that by vetoing a law he
was determining that it was
unconstitutional
From 1804 after the Supreme Court
decision in Marbury v. Madison the
Supreme Court has interpreted the
constitution
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But the Supreme Court is dependent on other
branches for carrying out its decisions
Also the Supreme Court is aware of changing
popular opinion, so what you think about the
Constitution also matters